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Second Appeal Analysis
PA ID# 000-U03E9-00; Florida Department of Transportation
PW ID# 288; Damage Assessments
In 2008, Tropical Storm Fay caused widespread flooding throughout Florida (FL) Department of Transportation (Applicant) District 4 in southeast Florida. The flooding caused bridge scour and other damage to the Applicant’s bridges located within District 4. The Applicant’s contractor inspected bridges in Broward, Palm Beach, St. Lucie, Martin, and Indian River Counties. Project Worksheet (PW) 288 was prepared to address bridge inspections, including scour safety assessments, conducted by the Applicant’s contractor.
Initially, PW 288 was drafted categorizing the bridge inspections as emergency protective measures. However, FEMA subsequently deemed the bridge inspections to be damage assessments and ineligible for Public Assistance (PA) funding based on the PA Guide. In addition, FEMA determined the bridges fell under the purview of the Federal Highway Administration (FHWA), and, consequently, the Applicant was not legally responsible for them. As such, FEMA obligated PW 288 for zero dollars.
In its first appeal, dated August 8, 2011, the Applicant requested $48,677.53 in PA funding for labor performed to identify damages resulting from the disaster. The Applicant asserted that FEMA’s conclusion, that the work was ineligible because it was not considered emergency work, was inaccurate. The Applicant claimed that the work was vital to the health and safety of the traveling public because the unknown status of the bridges led to road closures which prevented emergency vehicles and personnel from accessing roads. The Applicant also claimed that while the bridges were considered FHWA roadways, the bridge safety inspections were statutorily excluded from FHWA reimbursement. The Applicant cited the PA Guide as evidence that FEMA may consider providing assistance for work that falls outside of another Agency’s authority, but is eligible under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act).
In a letter, dated November 1, 2011, the Florida Division of Emergency Management (Grantee) distinguished between a safety inspection, which may be eligible for funding, and a damage assessment, which is not. The Grantee argued the work completed in PW 288 was a safety inspection. The Grantee cited to the Scope of Services in the contract between the Applicant and its contractor. The Grantee claimed that the scope demonstrates that the work completed was a safety inspection.
In a letter dated May 9, 2013, the Region IV Regional Administrator (RA) denied the first appeal determining the inspections were under the authority of the FHWA. In addition, the RA concluded that the inspections were damage assessments, and the Applicant failed to provide new information to substantiate the eligibility of the work. The RA partially based his decision on the denial of two second appeals that involved similar safety inspections by the Applicant.
In an undated second appeal, the Applicant again claims that the bridge inspections are eligible emergency protective measures. The Applicant asserts that the disaster forced road closures, and due to emergency conditions, immediate action needed to be taken. The Applicant argues that the intent of the bridge inspections was to reveal damage that may endanger the public. The Applicant also asserts that it was legally responsible for bridge inspections.
In a letter dated October 24, 2014, the Grantee recommends that FEMA extend the definition of “safety inspection” in FEMA DAP 9523.2, Eligibility of Building Safety Inspections Supporting Emergency Work, to include work performed by the Applicant in PW 288. The Grantee asserts that the work embodied in PW 288 are safety inspections, not damage assessments, and as such, are the Applicant’s legal responsibility pursuant to Florida Statute (FS) 335.074.
The Stafford Act Stafford Act § 423, as implemented by Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206(c)(1), requires an Applicant to appeal a denial regarding eligibility for, from, or amount of Public Assistance within 60 days after the date on which it was notified of the denial. Pursuant to 44 C.F.R. § 206.206(c)(2), the Grantee must submit appeals from an Applicant, with a written recommendation, to the Regional Administrator within 60 days of receipt. Neither the Stafford Act nor 44 C.F.R. provides FEMA authority to grant time extensions for filing second appeals.
The RA issued the first appeal determination on May 9, 2013. In total, the Applicant and Grantee had 120 days from receipt of the first appeal decision to submit the second appeal to FEMA. While the Applicant’s second appeal is undated, the Grantee submitted its written recommendation, with the Applicant’s second appeal attached, to FEMA on October 24, 2014, more than seventeen months after FEMA Region IV’s first appeal decision. As such, the Applicant’s second appeal failed to meet the procedural requirements of 44 C.F.R. § 206.206(c)(2) and consequently is denied. Timeliness aside, as described below, the second appeal also is not compelling on the substantive issues and would otherwise be denied.
Pursuant to 44 C.F.R. § 206.223(a)(3), an item of work must be the legal responsibility of the Applicant to be eligible for PA funding. Facilities owned by other Federal agencies typically are not eligible for PA funding. However, if the Federal agency turns over responsibility for operation and maintenance to a local agency, FEMA funding may be available.
The FHWA considers safety inspections to be the responsibility of the State. The Applicant argues that, while the FHWA owns the bridges at issue, it is responsible for safety inspections of bridges within its jurisdiction. As evidence, the Applicant cites to Florida Statute (FS) 335.074 and FDOT Policy 850-010-030-g. FS 335.074 provides, “[a]t regular intervals, not to exceed 2 years, each bridge on a public transportation facility shall be inspected for structural soundness and safety for the passage of traffic on such bridge … The governmental entity having maintenance responsibility for any such bridge shall be responsible for having inspections performed and reports prepared .… ”
Pursuant to Florida Department of Transportation (FDOT) Policy 850-010-030-g, Florida DOT is directly responsible for the inspection of all bridges on the state highway system. However, the policy provides that inspections are part of a bridge maintenance program and the purpose of the maintenance program is to “prevent or reduce deterioration” of the bridges and to extend the bridges’ useful lives.
FEMA does not argue that the Applicant is responsible for conducting routine safety inspections of bridges within its jurisdiction. However, as explained in FS 335.074 and FDOT Policy 850-010-030-g, these inspections are for regular maintenance to ensure the bridges are structurally sound. The inspections are not for assessing possible damage following a declared disaster event. The Applicant would be responsible for completing these routine inspections every two years regardless of whether a disaster occurred. In addition, as explained below, FEMA does not classify the work embodied in PW 288 as safety inspections. The bridges fell under the purview of the FHWA. As such, the FHWA was legally responsible for damage assessments like those following Tropical Storm Fay. Therefore, FS 335.074 and FDOT Policy 850-010-030-g are not applicable.
Emergency Work Eligibility
Consistent with Stafford Act § 403 and 44 C.F.R. § 206.225, FEMA may reimburse a state or local government for emergency work performed immediately before, during, and following a declared disaster event. Emergency work is defined as “work which must be done immediately to save lives and to protect improved property and public health and safety, or to avert or lessen the threat of a major disaster.” FEMA policy excludes surveying facilities, and specifically bridge inspections, to determine the possibility of damage from eligible emergency work because assessing the extent of damage is the responsibility of the facility’s owner and covered by the Applicant’s administrative allowance. FEMA has a limited exception to provide funding for some building safety inspections to address immediate threats to lives, improved property or the public health and safety. PA reimbursement may be available for activities that determine whether buildings are safe for entry, occupancy, and lawful use. Such building safety inspections primarily address structural safety, but may also include electrical hazards, the presence of mold, asbestos, or other hazardous materials, or fire safety issues.
The Applicant argues that it had reason to believe that there was significant scour at the bridge foundation, which could have presented immediate threats to life and property, and closed the roads leading to the bridge until it could assess the matter. The Applicant later found no scour present on its bridges. As evidence that the work performed was eligible emergency work, not a damage assessment, the Applicant submitted the contract governing the work performed in PW 288. The Scope of Services for the contract includes visual inspection and documentation of any deficiencies to the bridges’ undersides and on-site scour assessments.
The Grantee recommends that FEMA apply the rationale for eligible safety inspections in DAP 9523.2, Eligibility of Building Safety Inspections Supporting Emergency Work, to the work completed in PW 288. That policy provides that FEMA may consider the increased demand for building safety inspection services as an eligible emergency protective measure if such inspections are related to the disaster and are necessary to establish if damaged structures pose an immediate threat to life, public health or safety, or improved property. However, as the title suggests, the policy is specific to buildings and does not apply to bridges. As such, it is not applicable in this appeal. FEMA policy categorizes the contractor’s visual inspection for potential structural deficiencies and scour as a damage assessment because visually inspecting the bridges to determine whether disaster-related damage is present is explicitly excluded from eligible work under the PA program.
Applicant’s second appeal is time barred by 44 C.F.R. § 206.206. Timeliness aside, the Applicant failed to demonstrate the work performed on its bridges were not damage assessments. Pursuant to FEMA policy, damage assessments are not emergency work, and therefore, are not eligible for PA funding. As such, the appeal is denied.
 Public Assistance Guide, FEMA 322, at 55 (June 2007) [hereinafter PA Guide].
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, §§ 403 and 406, 42 U.S.C. §§ 5170b and 5172 (2007).
 See FEMA Second Appeal Analysis, FL Department of Transportation, FEMA-1561-DR-FL (Mar. 23, 2009); see also FEMA Second Appeal Analysis, FL Department of Transportation, FEMA-1609-DR-FL (Oct. 14, 2008).
 Disaster Assistance Policy DAP9523.2, Eligibility of Building Safety Inspections Supporting Emergency Work, at 2 (Jan. 28, 2008).
 Stafford Act § 423; see also 44 C.F.R. § 206.206(c)(1) (2008).
 44 C.F.R. § 206.206(c)(2).
 See 44 C.F.R. § 206.206(c)(1) and (2).
 See FEMA Second Appeal Analysis, Public Health Trust of Miami-Dade County, FEMA-3259-EM-FL, at 2 (Mar. 27, 2015; see also FEMA Second Appeal Analysis, Broward County School Board of Florida, FEMA-1609-DR-FL, at 2 (Sep. 4, 2014).
 See U.S. Department of Transportation Federal Highway Administration, Bridges and Structures, //www.fhwa.dot.gov/bridge/110613.cfm (last visited May 19, 2015) (stating states are responsible for ensuring all public highway bridges within the State are inspected in accordance with the National Bridge Inspection Standards (NBIS). In addition, if the locally owned bridge is not inspected or appropriately posted or closed to ensure safety, the FHWA will hold the State DOTs responsible, and subject to potential withholding of Federal-aid authorizations.).
 Fla. Stat. § 335.074(2) (2008).
 See Florida Department of Transportation Policy 850-010-030-g, Bridge and Other Structures Inspection and Reporting, at 5 (Dec. 21, 2007).
 See Stafford Act § 403; see also 44 C.F.R. § 206.225.
 44 C.F.R. § 206.201(b).
 PA Guide, at 55. It is important to note that, once the Applicant has determined the facility is damaged, costs for an engineering evaluation to determine the type and extent of repairs necessary to return the facility to pre-disaster condition is eligible (PA Guide, at 56).
 See Disaster Assistance Policy DAP9523.2, Eligibility of Building Safety Inspections Supporting Emergency Work, at 1 (Jan. 28, 2008).
 Emergency Contract between District Maintenance Engineer, Florida Department of Transportation, and President, Reynolds, Smith and Hills, CS, Inc. (Sep. 11, 2008) [hereinafter Emergency Contract].
 Disaster Assistance Policy DAP9523.2, Eligibility of Building Safety Inspections Supporting Emergency Work, at 2-3.
 See FEMA Second Appeal Letter, FL Department of Transportation, FEMA-1609-DR-FL, at 2 (Sep. 11, 2008) (determining that a previous version of DAP 9523.2 applied to buildings, not FHWA roads); see also PA Guide, at 76 (stating building inspections are eligible if necessary to establish whether a damaged structure poses an immediate threat to life, public health or safety).
 See PA Guide, at 55.